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HCAL 3018/2018
[2021] HKCFI 761
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3018 of 2020
BETWEEN
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Shin Jeong Shik |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Background [1]
1. The applicant was born on 4/1/1969. He was raised in Kwang Ju, Korea. He was a Roman Catholic. He held a Master degree in International Law [2]. He was married in Hong Kong with one son. His parents lived in Korea. He had a younger brother whose whereabouts was unknown. He had 12 years working experience. He last ran an insurance claim adjusting business from 2001-2007.
2. Around 2003, his brother borrowed HK$ 3 million from a loan shark to set up a cyber café and other partnership businesses. He signed the loan agreement as the guarantor. His brother had to pay monthly interest of HK$15,000 until the principal was paid up. There was a condition that in case they failed to repay, they had to surrender their bodies.
3. His brother’s business was unsuccessful. His brother could not repay the loan and ran away. From 2004—2006, he repaid the monthly interest for his brother.
4. One day in late 2006, the loan shark demanded repayment of the principal in short notice. He could not repay. He was made to sign another loan agreement. The loan shark and his men left. The next day, there was a legal notice issued by the bailiff’s office demanding repayment of the money owed otherwise his office would be confiscated. He suspected that the loan shark was behind this. He could not recall how much he paid the bailiff and the execution proceeding was cancelled.[3]
5. In early 2007, the loan shark and some men came to his office again demanding repayment. Some men even pointed knives at him threatening to stab. They then took away all the cash from his office. He was in fear and closed his business in October 2007.
6. From then onwards, there were calls to him and his parents demanding repayment of his brother’s loan with threats. He thought the calls must be from the loan shark. The calls continued even after he changed phone number.
7. He did not report to the police as he thought his brother was at fault. The police could not do anything.
8. In October 2008, he left Korea using his brother’s passport [4]. He lost his own passport but was afraid to report the loss. He thought the loan shark had connection with the police.
9. Since he came to Hong Kong in October 2008, he kept travelling in and out of Hong Kong to prolong his stay. In 2010, he married his girlfriend in Hong Kong. In April 2012, he was arrested for using a false travel document and other offences [5]. He was imprisoned for 12 months. During his imprisonment, he received threatening letters from an unknown sender. That sender threatened to kill him upon his return to Korea if he failed to repay the money.
10. He last contacted his parents in June 2015. They were safe as the police would protect them if they reported. They received threatening calls looking for him and his brother. They changed their phone numbers to stop those calls.
11. He was afraid that the loan shark would kill him. He suspected that the loan shark had connection with the Korean authorities. He filed his torture claim on 21/12/2012.
The Decision of the Director
12. The Director rejected his claim on 11/11/2015. The Director found that the risk that the applicant would be killed or harmed was low. The reasons being:[6]
(a) He was never injured by the loan shark and his men. They threatened him for the repayment of the loan only. In fact, they only took away the cash from his office even when armed with knives in early 2007. Had they wanted to kill or injure him, the loan shark had plenty of opportunities.
(b) He was threatened verbally by phone and also by letters. The threats were never carried out given the absence of physical injury. The threats did not attain a minimum level of severity.
(c) There was no evidence that the loan shark had tried to locate him in Korea. They never went to his home or other places except his office. After he closed down his business, he hid himself safely at his friends’ places in Kwang Ju. He was safe in Seoul for a week before leaving for Hong Kong.
(d) There was no evidence that the loan shark would use resources to locate him throughout Korea.
(e) The letters showed that the sender threatened him not to return to Korea or else the sender would inflict injuries on him. This was contrary to the interest of the loan shark. If the applicant did not return to Korea, the loan shark would not be able to get repayment.
(f) The Director accepted that there were corruption problems with the Korean police according to the news report and COI. However, the Korean government had strived to combat loan sharks and corruption problems. The government had effective mechanisms to investigate and punish abuse and corruption. The Anticorruption and Civil Rights Commission operated effectively in tackling corruption. The Korean National Police Agency carried out programs to improve their performance. The Director concluded there was reasonable State protection in Korea.
(g) It was permissible to relocate in Korea according to law. The population of Korea was 49.1 million and its area was about 97,000 square km. It would be very difficult for the loan shark to locate him. Given his qualification and experience, it was not unduly harsh for him to relocate to city like Busan. In reality, there was no evidence that the loan shark had the resources to locate him throughout Korea.
13. The Director dismissed his claim on BOR 3, persecution risk and ‘torture’ risk.
14. The Director invited the applicant to file further evidence before considering the BOR 2 claim on 24/5/2017. There was no response from the applicant. The Director dismissed the claim on BOR 2 based on existing information in the decision dated 26/6/2017.
The Decision of TCAB [7]
15. The applicant lodged an appeal to the TCAB. He attended a hearing before the TCAB on 13/2/2018. Having heard the evidence, the adjudicator found that the applicant was untrustworthy for the following reasons:
(a) The applicant had delayed for about 8 months before lodging the non-refoulement claim. He did not mention that he came to Hong Kong in fear of a Korean loan shark during the proceedings in the Magistrate’s court despite he was represented. His explanation that he only learned about the scheme when in CIC was implausible given his background.
(b) In his NCF, he stated that he last left Korea on 10/10/2008 using his brother’s passport. This was untrue given his movement record [8]. It transpired that he had departed Hong Kong to Korea on 28/1/2009. He admitted during the hearing before the TCAB that he had returned to Korea 2—3 times visiting his parents and stayed for about a week each time.[9]
(c) The applicant was inconsistent as to the number of loan agreements he guaranteed[10], the interest rate[11] and the repayment for his brother[12]. He was inconsistent about his brother’s business, the partnership and the partners he had met[13]. Given his educated background, the adjudicator did not accept it was simply errors of recollection.
(d) As to the threatening letters, the adjudicator did not put weight on them given his credibility. The adjudicator also agreed with the Director that those letters was contrary to the interest of the loan shark. The threats frightened the applicant from returning to Korea.
16. The adjudicator dismissed the appeal on all claims on 19/10/2018 and confirmed the decisions of the Director dated 11/11/2015 and 26/6/2017.
Judicial Review
17. The applicant filed the leave application for judicial review on 31/12/2018. In the Form 86, he disagreed with the TCAB. He did not point out any specific error in the decision.
18. I have considered the evidence in this case. The applicant was inconsistent in some material aspects. I agree with the decisions of the adjudicator and the Director. They are reasonable. In my view, there was no error of law nor procedure.
Conclusion
19. I refuse leave for judicial review. This case is not reasonably arguable. There is no reasonable prospect of success.
Dated the 25th day of March 2021.
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(Mike Mak) |
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for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 25 March 2021
Shin Jeong Shik
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 25 March 2021
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2588/15/11/100/KOR1
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1392/15 and RBCZ/9001980/17 (Formerly RBCZ/76/13)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director dated 11/11/2015, §§6—8.
[2] He had a BA in Economics.
[3] Decision of the TCAB dated 19/10/2018, §§47—49.
[4] His brother left his passport with his parents.
[5] Using a false travel document, making a false representation to an immigration assistant and making a false declaration for the purpose of procuring a marriage.
[6] Decision of the Director dated 11/11/2015, §§11—17.
[7] Decision of the TCAB dated 19/10/2018, §§67—79.
[8] It was ordered by the TCAB.
[9] Decision of the TCAB dated 19/10/2018, §§8—10, 72—73.
[10] Decision of the TCAB dated 19/10/2018, §§47—49.
[11] Decision of the TCAB dated 19/10/2018, §§39.
[12] Decision of the TCAB dated 19/10/2018, §§44.
[13] Decision of the TCAB dated 19/10/2018, §§42—43.
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